On the 21st of July 2023, the Labour Court confirmed that employees are not automatically protected from disciplinary action, even if they possess a medical certificate for absenteeism from work. This ruling arose from a case referred to the CCMA for unfair dismissal, where the employer disputed the fairness of the dismissal, citing contradictory evidence.
In this case, the employee had informed his supervisor via text message that he was not well and would not be at work. This was accepted, and the employee was granted paid sick leave. On the following day, the employee sent another message, still claiming to be unwell. His supervisor advised him to seek medical attention, which resulted in a medical certificate being issued, covering the employee for three days of absence.
However, the employee’s supervisor later saw the employee participating in a public protest while on sick leave. An investigation led to the employee's dismissal for gross dishonesty. Although the CCMA initially ruled that the dismissal was substantively unfair, the employer challenged this decision in the Labour Court.
The Labour Court found that the Commissioner had failed to determine whether the employee was genuinely unable to attend work. The Court ruled that attending a protest while on sick leave demonstrated that the employee was not too ill to work, thus indicating dishonesty. It was further noted that the employee did not seek medical attention until two days after claiming to be ill.
Similar cases were considered, such as Woolworths v CCMA & Others, where an employee attended a rugby match while booked off sick. The Court emphasized that dishonesty of this nature damages the trust between employer and employee.
Employees must prove that they are genuinely unwell when claiming sick leave. A medical certificate must clearly indicate that an employee was unfit for work during the absence period. Employers, on the other hand, are within their rights to question and investigate if evidence suggests that an employee was not genuinely ill, even if a medical certificate is provided.
Should you have any further questions or concerns, feel free to contact us for further discussion.